Chapter 15 – Legal Issues

I. Administrative Subpoenas.

A. When to Issue.

An Administrative Subpoena may be issued whenever there is a need for records, documents, testimony or other supporting evidence necessary for completing an inspection or an investigation of any matter falling within HIOSH’s authority.

1. The Administrator has the authority to issue subpoenas, and may also delegate the authority to Branch Managers for routine administrative subpoenas.
2. The issuance of an administrative subpoena requires the signature of the individual authorized to issue such subpoenas.

B. Two Types of Subpoenas.

There are two types of subpoenas used to obtain evidence during a HIOSH investigation:

1. A Subpoena Duces Tecum is used to obtain documents. It orders a person or organization to appear at a specified time and place and produce certain documents, and to testify to their authenticity. Employers are not required to create a new record in order to respond to these types of subpoenas.
2. A Subpoena Ad Testificandum commands a named individual or corporation to appear at a specified time and place, such as the HIOSH Office, to provide testimony under oath. A written statement is made to document testimony.
   
   HIOSH would normally issue only a Subpoena Duces Tecum to specify which documents are being requested as well as order specific persons to testify not only as to the authenticity of the documents, but to provide additional testimony under oath.

C. Branch Manager Delegated Authority to Issue Administrative Subpoenas.

Although authority to issue subpoenas is reserved to the Administrator, branch managers may be authorized to issue routine administrative subpoenas.

1. Branch managers may be delegated authority to issue administrative subpoenas for any record or document relevant to an inspection or investigation under the Law, including:
   1. Injury and illness records such as the OSHA-301 and the OSHA-300 See CPL 02-02-072, Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records, dated August 22, 2007, and 29 CFR 1913.10(b)(6);
   2. Autopsy/medical examiner reports;
   3. Police and/or emergency responder reports;
   4. Hazard communication program;
   5. Lockout/tagout program; and
   6. Safety and Health Program.
      
      NOTE: The Branch Manager maintains responsibility for the protection of medical records, regardless of whether an MAO (Medical Access Order) was issued.
2. Information shall be requested from the employer or holder of records, documents, or other information-containing materials.
   1. If this person/entity refuses to provide requested information or evidence, the HIOSH representative serving the subpoena shall explain the reason for the request.
   2. If there is still a refusal to produce the information or evidence requested, the HIOSH representative shall inform the person/entity that the division may take further legal action.
3. The official issuing the subpoena is responsible for evaluating the circumstances and deciding whether to issue a subpoena. In cases with potential national implications or involving extraordinary circumstances, the Administrator shall be contacted for concurrence or to determine whether the subpoena should be issued by the Administrator.

D. Administrator Authority to Issue Administrative Subpoenas.

1. The Administrator has independent authority to issue subpoenas for any appropriate purpose. Unless delegated to a Branch Manager, the following authority shall be reserved to the Administrator:
   1. Issuance of a Subpoena Ad Testificandum to require the testimony of any company official, employee, or other witness;
   2. Issuance of a subpoena for the production of personally identifiable medical records for which a medical access order has been obtained See CPL 02-02-072, Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records, dated August 22, 2007, and adopted by HIOSH on December 19, 2007; and §1913.10(b)(6); and
   3. Issuance of a subpoena for the production of physical evidence, such as samples of materials.
2. Although this authority may not routinely be delegated to branch managers, in a few cases such delegation may be appropriate.

E. Administrative Subpoena Content and Service.

1. Model administrative subpoenas are provided at the end of this chapter. If the Branch Manager believes that there is reason for any departure from the models due to circumstances of the case, the Administrator and DAG shall be consulted.
2. The subpoena shall be prepared for the appropriate party and will normally be served by personal service (delivery to the party named in person). Leaving a copy at a place of business or residence is not personal service.
   1. In exceptional circumstances, service may be by certified mail with return receipt requested.
   2. Where no individual’s name is available, the subpoena can be addressed to a business’ or organization’s “Custodian(s) of Records.”
3. Examples of language for a routine Subpoena Duces Tecum are provided below. This language should be expanded when requesting additional or more detailed information for accident, catastrophe, referral or fatality investigations.
   1. “Copies of any and all documents, including information stored electronically, which reflect training procedures for the lockout/tagout procedures and hazard communication program in effect at the [insert site name] in [insert city, state], during the period [insert month/day/year], to present.”
   2. “Copies of the OSHA-300 and the OSHA-301 forms, for the entire site, during calendar years [insert year] and [insert year].”
   3. “Copies of any and all documents, including information stored electronically, such as safety and health program handbooks, minutes of safety and health meetings, training certification records, audits and reprimands for violations of safety and health rules by employees of the [insert site name] in [insert city, state], that show [insert employer’s name] had and enforced safety rules relating to the use of trench boxes during the period [insert month/day/year], to present.”
      
      NOTE: Where particular information is being sought, a subpoena’s description should be narrow and specific in order to increase the likelihood for prompt compliance with the request.
4. The subpoena must state the date, time, and specific location for the individual to appear.
   1. With respect to any record required to be made or kept pursuant to any statute or regulation, the subpoena shall normally allow three calendar days from the date of service for production of the required information although a shorter period may be appropriate.
   2. With respect to other types of records or information, such as safety programs or incident reports, the subpoena shall normally allow at least five working days from the date of service for production of the required information.
   3. Separate subpoenas for items 1 and 2 above may be necessary.
5. Since every subpoena requires the appearance of a “witness” to either provide testimony or to certify that the records produced are complete and unaltered copies, Hawaii law requires that a check to cover the witness fee and mileage to appear is to be provided at the time the subpoena is served.
   1. The current witness fee, in accordance with Hawaii penal code, §12-621-7, HRS, is $20
   2. Mileage is to be computed from the location where the individual works to the appearance location and back and shall be based on the most recent Federal rate according to the State Comptroller’s Office.
      
      NOTE: §12-621-7 authorizes the State Judiciary to set mileage rates in accordance with the Hawaii Procedures Act (administrative rules), but no rules have been promulgated to date. Until rules are promulgated, calculation of mileage fees will be based on past practice
6. The branch shall prepare the subpoena for either the Administrator’s signature or, if delegated, the Branch Manager’s signature.
7. Secretaries preparing the subpoena should ensure that the information provided by the Branch Manager contains all required information for not only the subpoena but the check disbursement; including complete and legal names and addresses, and distance from the appearance site.
8. For especially short turnaround times, ASO (and others required to approve payments) should be notified in advance that a “RUSH” request is forthcoming.
9. When the individual is being served, a “Return of Service” must be completed, indicating:
   1. Name of representative serving the subpoena;
   2. Date and time of service; and
   3. Signature of the person served, or of the authorized representative of the entity being served.
10. Copies of the subpoena, signed by the Administrator (or Branch Manager if so authorized), the witness and mileage fee check, as well as the completed Return of Service shall be filed in the case file.
    
    It is the responsibility of the CSHO to track the issued administrative subpoena; to make arrangements for the logging of all documents received, pending, and not available; arrange for the appropriate facilities for the testimony to be taken; and for any other specific requirement relating to the subpoena.

F. Compliance with the Subpoena.

The person/entity served may comply with the subpoena by making the information or evidence available to the compliance officer immediately upon service, or at the time and place specified in the subpoena.

1. If the individual is unable to appear at the time and place indicated on the subpoena due to circumstances beyond their control, allowances may be made; e.g. the HIOSH representative can go to the individual’s location, or the date to appear may be moved up. In extreme circumstances the appearance date may be delayed.
2. The individual may wish to be accompanied by his/her attorney.

G. Refusal to Honor Subpoena.

1. If the person/entity served refuses to comply with (or only partially honors) the subpoena, the compliance officer shall document all relevant facts and advise the Branch Manager before taking further action.
2. To enforce a subpoena, the Branch Manager shall refer the matter, through the Administrator, to the DAG for appropriate action.

H. Anticipatory Subpoena.

Generally, division policy is to seek voluntary production of evidence before an administrative subpoena is issued. However, a subpoena may be executed and served without making a prior request where there is reason to believe that the corporate entity and/or person from whom information is sought will not voluntarily comply, or where there is an urgent need for the information, such as for fatality investigations.

NOTE: For example, pre-inspection preparation of subpoenas for issuance at the opening conference is appropriate in cases where the employer has previously denied access to records or where complex inspections, involving extensive review of records, are planned.

II. Service of Subpoena on HIOSH Personnel.

A. Proceedings to which the State is a Party.

If any HIOSH personnel is served with a subpoena or order either to appear or to provide testimony in, or information for, a proceeding where the Director or department is a party, they shall immediately contact the DAG for instructions regarding the manner in which to respond. If a CSHO is served with a subpoena, they shall notify the Branch Manager immediately who shall then refer the matter to the DAG, via the Administrator.

B. Proceedings to which the State is Not a Party.

1. If any HIOSH personnel is served with a subpoena or order either to appear or to provide testimony in, or information for, a proceeding to which the Director or the department is not a party (e.g., a private third party tort suit for damages associated with a workplace injury), they shall immediately notify the Administrator.
2. The Administrator will notify the party responsible for the subpoena that
   1. No record or determination can be used in any civil action in accordance with §396-14, HRS, and therefore, there will be no appearance by the Custodian of Records or by the witness. The witness and mileage check shall be returned.
   2. If the case is closed, the individual can be notified that the only documents that can be released will be the Citation and Notification of Penalty, and any adjustments to this document, e.g., Informal Settlement Agreement, Formal Settlement Agreement (Stipulation and Settlement Agreement), HLRB or appellate court decisions.
   3. If the party responsible for the subpoena insists that the witness appear and/or the documents be produced, the DAG shall be contacted. The DAG is responsible for responding to such requests and will take appropriate steps to have the subpoena quashed or if the judge in the case still requires the appearance of the HIOSH employee, to take steps to ensure that the information in the case file is not released or made available.

III. Obtaining Warrants.

A. Warrant Applications.

1. Upon refusal of entry, of if there is reason to believe an employer will refuse entry, the Branch Manager shall proceed according to guidelines and procedures established by the department for warrant applications. The Branch Manager shall initiate the compulsory process based on information from the CSHO. A memo requesting the warrant shall be submitted to the DAG via the Administrator’s office as soon as possible.
2. Warrant applications for establishments where consent has been denied for a limited scope inspection (i.e., complaint, referral, or accident investigation) shall normally be limited to the specific working conditions or practices forming the basis of the inspection. However, a broad scope warrant may be sought if there is evidence of potentially pervasive violative conditions or if the establishment is on a current list of establishments targeted for a comprehensive inspection.

B. General Information Necessary to Obtain a Warrant.

The Branch Manager shall inform the DAG via memo within 24 hours after the determination is made to seek a search warrant and provide all information necessary to obtain a warrant, including:

1. Branch, telephone number, and name of Branch Manager;
2. Name of CSHO attempting inspection and inspection number, if assigned. Identify whether the inspection to be conducted will include safety items, health items or both;
3. Legal name(s) of establishment and address, including City, State and County. Include site location if different from mailing address;
4. Estimated number of employees at inspection site;
5. Standard Industrial Classification (SIC) or North American Industry Classification System (NAICS) Code and high hazard ranking for that specific industry within the State, as obtained from statistics provided by the Research and Statistics Office (R&S), or by BLS;
6. Reason for inspection, e.g. Programmed, Complaint, Accident, Referral, etc. (See C. below)
7. Summary of all facts leading to the refusal of entry or limitation of inspection, including:
   1. Date and time of entry/attempted entry;
   2. Date and time of denial;
   3. Stage of denial (entry, opening conference, walkaround, etc.);
8. A narrative of all actions taken by the CSHO leading up to, during, and after refusal, including:
   1. Full name and title of the person(s) to whom CSHO presented credentials;
   2. Full name and title of person(s) who refused entry;
   3. Reasons stated for the denial by person(s) refusing entry;
   4. Response, if any, by CSHO to the denial name and address (if known) of any witnesses to denial of entry.
9. Any information related to past inspections, including copies of previous citations.
10. Any previous requests for warrants. Attach details, if applicable.
11. All completed information related to the current inspection report, including documentation of any observations of violations in plain view discovered prior to denial.
12. Other pertinent information, such as: description of the workplace; the work processes; machinery, tools and materials used; known hazards and injuries associated with the specific manufacturing process or industry.
13. Investigative procedures that may be required during the proposed inspection, e.g., interviewing of employees/witnesses, personal sampling, photographs, audio/videotapes, examination of records, access to medical records, etc.

C. Specific Warrant Information Based on Inspection Type.

Document all specific reasons for the selection of the establishment to be inspected, including proposed scope of the inspection:

1. Imminent Danger.
   1. Description of alleged imminent danger situation;
   2. Date information received and source of information, e.g. current employee (exclude name and identifying information), news media, concerned citizen, etc.;
   3. Copy of original allegation and copy of typed report, including basis for reasonable expectation of death or serious physical harm and immediacy of danger; and
   4. Whether all current imminent danger investigative procedures have been followed.
2. Fatality/Catastrophe.
   The OSHA-36 Form should be completed with as much detail as possible.
3. Complaint or Referral.
   1. Copy of original complaint or referral and copy of typed complaint or referral (with name and identifying information of complainant redacted);
   2. Reasons HIOSH believes that a violation threatening physical harm or imminent danger exists, including possible standards that could be violated if the complaint or referral is credible and representative of workplace conditions;
   3. Whether all current complaint or referral processing procedures have been followed; and
   4. Any additional information pertaining to the evaluation of the complaint or referral.
4. Programmed.
   1. Targeted safety – general industry, public sector, construction;
   2. Targeted health; and/or
   3. Special emphasis program–Special Programs, Local Emphasis Program, etc.
5. Follow-up.
   1. Date of initial inspection;
   2. Details and reasons follow-up was conducted;
   3. Copies of previous citations which served as the basis for initiating the follow-up;
   4. Copies of settlement agreements and final orders, if applicable; and/or
   5. Previous history of failure to correct, if any.
6. Monitoring.
   1. Date of original inspection;
   2. Details and reasons monitoring inspection is to be conducted;
   3. Copies of previous citations and/or settlement agreements that serve as the basis for the monitoring inspection; and/or
   4. Petition for Modification of Abatement Date (PMA) request, if applicable.

D. Warrant Procedures.

Where a warrant has been obtained, CSHOs are authorized to conduct the inspection in accordance with the terms of the warrant. All questions from employers concerning the reasonableness of a compulsory process inspection shall be referred to the Branch Manager and the DAG.

1. Action Taken Upon Receipt of Warrant (Compulsory Process).
   1. The inspection will normally begin within 24 hours of receipt of a warrant or from the date authorized by the warrant for initiating the inspection.
   2. Upon completion of the inspection, if the warrant includes a return of service space for entering inspection dates, CSHOs shall complete the return of service on the original warrant, sign and forward it to the Branch Manager for appropriate action.
2. Serving a Subpoena for Production of Records.
   Where appropriate, even where the scope of an inspection is limited by a warrant or an employer’s consent to specific conditions or practices, any subpoena for production of records shall be served in accordance with the section on administrative subpoenas in this chapter.

E. Second Warrant.

Under certain circumstances, a second warrant may be sought to expand an inspection based on a records review or “plain view” observations of other potential violations discovered during a limited scope walkaround.

F. Refused Entry or Interference.

1. When an apparent refusal to permit entry or inspection is encountered upon presenting the warrant, CSHOs shall specifically inquire whether the employer is refusing to comply with the warrant.
2. If the employer refuses to comply or if consent is not clearly given, CSHOs shall not attempt to conduct the inspection at that time, and shall leave the premises and contact the Branch Manager or Administrator regarding further action.
   1. CSHOs shall fully document all facts relevant to the refusal (including noting all witnesses to the denial of entry or interference).
   2. Branch Managers shall then contact the Administrator and the DAG, who shall jointly decide the action to be taken.

G. State Sheriff Assistance.

In unusual circumstances, a State Sheriff may be asked to accompany a CSHO when a warrant is presented. A request for a Sheriff’s assistance shall be made only by a Branch Manager after consultation with the Administrator and the DAG, and only when there is a potential for violence, harassment and/or interference with the inspection, or reason to believe that the presence of a State Sheriff will assist with compliance with the warrant.

IV. Equal Access to Justice Act (EAJA).

A. EAJA not applicable to HIOSH.

The Equal Access to Justice Act (EAJA) provides that a party prevailing against the United States in litigation may be awarded fees payable by an agency of the United States if the agency’s position in litigation was not “substantially justified” or if the agency proposed a penalty that was reduced as a result of litigation and subsequently determined to be “unreasonable.” EAJA awards are statutorily limited to certain small entity parties, generally those with a designated net worth and/or number of employees. See 28 U.S.C. § 2412(d)(2)(B). This provision is NOT applicable to the State.

B. Legislative Oversight.

§396-11(k), HRS, requires the Director to submit an annual report to the legislature on the number of contests filed, the disposition of each, and information indicating whether the contested issue involved an employee or employees of the department who failed to act within the scope of their office, employment, or authority under this chapter. The intent is to monitor HIOSH activities to determine whether HIOSH may be abusing its authority under the Law.

The criteria for whether an employee or employees failed to act within the scope of their office, employment, or authority is whether he or they failed to follow the Field Operations Manual (FOM).

C. §396-11(k) Should Not Affect How the Division Operates.

§396-11(k), HRS should not affect the manner in which the agency operates, as citations are issued only in accordance with the FOM, i.e., after HIOSH determines that there is adequate evidence that a violation exists, and proposed penalty amounts are determined based on established statutory and administrative criteria, and facts derived during the inspection/investigation.

Employees who fail to follow the FOM, and thus fail to act within the scope of their office, employment, or authority are also not immune from liability in accordance with §396-4(b)(7), HRS.

V. Notice of Contest.

The Hawaii Labor Relations Board (HLRB, or “the Board”) is an independent State agency, administratively attached to the Department, tasked with the responsibility to decide contests of citations or penalties resulting from HIOSH inspections under Chapter 396, HRS. HLRB, therefore, functions as an administrative court, with established procedures for conducting hearings, receiving evidence and rendering decisions.

A. Time Limit for Filing a Notice of Contest.

1. The Law provides employers twenty (20) calendar days following its receipt of a notice of a citation to contest citation and/or assessment of penalty.
2. Where a notice of contest was not received or mailed, i.e., postmarked, within the 20 calendar day period allowed for contest, the Branch Manager shall follow the instructions for Late Notices of Contest. A copy of any untimely notice of contest shall be retained in the case file.

B. Contest of Abatement Period Only.

If the notice of contest is submitted to HIOSH after the 20 calendar day period, but contests only the reasonableness of the abatement period, it shall be treated as a Petition for Modification of Abatement and handled in accordance with PMA procedures.

C. Communication Where the Intent to Contest is Unclear.

1. If a written communication is received from an employer containing an objection, criticism or other adverse comment as to a citation or proposed penalty, but which does not clearly appear to contest the citations, the Branch Manager shall contact the employer to clarify the intent of the communication.
   • After receipt of the communication, any clarification should be obtained within the 20 calendar day contest period, so that if a determination is made that it is a notice of contest, the file may be timely forwarded to the Hawaii Labor Relations Board. Where the employer does not respond to the request for clarification within the 20 calendar day contest period, the letter is to be treated as a contest of all items and the related penalties.
   • In cases where HIOSH receives a written communication from an employer requesting an informal conference that also states an intent to contest, the employer must be informed that there can be no informal conference unless the notice of contest is withdrawn. If the employer still wants to pursue an informal conference, it must first present or send a letter expressing that intent and rescinding the contest. All documents pertaining to such communications shall be retained in the case file.
2. If a Branch Manager determines that the employer intends the document to be a notice of contest, it shall be transmitted to the HLRB. If contact with the employer reveals a desire for an informal conference, the employer shall be informed that the conference does not stay the running of the 20 calendar day contest period.
   NOTE: Settlement is permitted at any stage of HLRB proceedings.

VI. Late Notice of Contest.

A. Failure to Contest Within the 20-Day Calendar Period.

If the employer fails to contest a citation or penalty within twenty calendar days following the receipt of a citation, the citation and assessed penalties become final orders. However, only HLRB can make the determination as to whether the contest was timely or not.

B. Contest Received after the Contest Period.

In every case where HIOSH receives an employer’s notice of contest of a citation and/or assessed penalty beyond the 20 calendar day period, Branch Managers shall inform employers that HIOSH believes that the notice of contest was untimely, stating facts such as the date HIOSH believes the citation was received based on the return receipt, and the postmark date on the envelope containing the contest letter and that the first issue to be determined by the Board shall be whether the contest was timely filed. Any explanation offered by the employer shall be noted in the Case Diary Sheet. HIOSH shall still transmit the late filed notice of contest, along with appropriate documents to the Board indicating that one of the issues is timely notice of contest.

C. Retention of Documents.

1. HIOSH shall maintain all documents reflecting the date on which the employer received the notice of a violation (and proposed penalty, if applicable), and the employer’s notice of contest was received, as well as any additional information pertinent to demonstrating failure to file a timely notice of contest, e.g., Return receipt, Postmarked envelope containing the contest letter.
2. Written or oral statements from the employer or its representative (if any) explaining the employer’s reason for missing the filing deadline shall also be maintained (notes shall be taken to memorialize oral communications).

VII. Contested Case Processing Procedures.

A copy of the notice of contest and the relevant documents and must be sent to the HLRB as soon as possible, but no later than 15 working days of receipt of the employer’s notification. The DAG shall also be sent a copy of the notice of contest along with all documents related to the case file. The file shall be redacted to protect the identity of any employees that may have filed a complaint or provided statements during the course of the inspection/investigation.

A. Transmittal of Notice of Contest to HLRB.

1. Documents to Chair of the Hawaii Labor Relations Board.
   In most cases, the envelope sent to the HLRB Chair will contain the following three documents:
   • Copy of the Employer’s letter contesting HIOSH’s action;
   • One copy of the Citation and Notification of Penalty Form (OSHA-2) or of the Notice of Failure to Abate Form (OSHA-2B); and
   • Transmittal Memo: Name, address, and contact information for the employer; names, addresses, and contact information for any employee representative or groups; and a summary of what is being contested, e.g. which citation items, which penalties, and whether contest timeliness is an issue.
2. Notices of Contest.
   A copy of the notice of contest shall be transmitted to the Board and the original retained in the case file. The envelope containing the notice of contest shall be retained in the case file with the postmark intact.
   If contest timeliness is also an issue, a copy of the return receipt or other method used to determine date employer received the citation and a copy of the envelope containing the notice of contest shall also be transmitted.
3. Contested Citations and Notice of Assessed Penalty or Notice of Failure to Abate.
   A signed copy of each of these documents shall be sent to the Board and a copy retained in the case file.

B. Transmittal of File to Deputy Attorney General (DAG).

As the deputy attorney general represents the division in all contested case proceedings before the Board, a copy of the appropriate documents shall also be sent simultaneous with the transmittal to the Board.

1. A transmittal memo addressed to the Supervising Deputy Attorney General for DLIR, with the same information as the transmittal to the Board;
2. A copy of the entire investigative file (including photos and videos) with witness names and identifiers redacted.

The assigned DAG will make applicable copies available to the Board and to the defendant (employer).

C. Notification to Other Parties.

Section 396-11(j) of the HIOSH Law provides for the opportunity for affected employees or their representatives to participate as parties to contested case hearings.

The HLRB has determined that it is their responsibility to notify employees or their representatives of the initial settlement/conference date so that they may have the opportunity to exercise their right. Thus, it is important that HIOSH provide the correct name, contact persons and addresses to the HLRB.

If the employee is deceased, the family of the accident victim may choose to participate in the hearings as an employee representative.

VIII. Communications while Proceedings are Pending before the Board.

A. Consultation with DAG.

1. After a notice of contest is filed, the case is within the jurisdiction of the Board, and there shall be no subsequent investigations of, or conferences with, the employer or employee representatives that have sought party status relating to any issues underlying the contested citations, without prior clearance from the DAG.
2. Once a notice of contest has been filed, all inquiries relating to the Citation and Notification of Penalty (OSHA-2) shall be referred promptly to the DAG. This includes inquiries from the employer, affected employees, employee representatives, prospective witnesses, insurance carriers, other Government agencies, attorneys, and any other party.

B. Communications with Commission Representatives while Proceedings are Pending before the Board.

CSHOs, Branch Managers, the Administrators, or other field personnel shall not have any direct or indirect communication relevant to the merits of any open case with the members of the Board, employees of the Board, or any of the parties or interveners. All inquiries and communications shall be handled through the DAG.

IX. Board Procedures.

A. One Level of Adjudication at the Departmental Level.

HIOSH currently has only one level of adjudication. HIOSH Law provides for potentially two levels of adjudication, a formal de novo hearing within the department with subsequent appeal on the record before HLRB, however, no departmental adjudication procedures have yet been developed.

B. Rules of Procedure.

1. HLRB has not yet promulgated any Rules of Procedure for HIOSH cases, however, in general HLRB follows the more conventional proceeding involving the use of pleadings, discovery, a hearing, and post –hearing briefs. The Chair has the discretion to determine any adjustment to its rules of procedures as appropriate to HIOSH contested cases.
2. Initial/Settlement Conference.
   Upon receipt of a case by the Board, an initial/settlement conference date is set to determine the issues, urge the parties to settle, and to set the dates for the following:
   1. Hearing date(s);
   2. Discovery cut-off date (date by which all discovery (evidence), including any depositions or responses to interrogatories is to be obtained);
   3. Evidence Production date (date by which all evidence to be used by the parties is produced, i.e. submitted to the Board and shared with all parties):
   4. Live witness notification date (A list of potential witnesses to be called at the hearing); and
   5. Settlement conference date.
      The Board will notify all parties of the date and time of this initial/settlement conference. The employer may choose to participate via telephone conference call.
3. Hearing Evidence.
   1. Review includes a new examination of all of the evidence (de novo), usually during a hearing, as well as briefs submitted by the parties following the hearing.
   2. Upon hearing all of the evidence, the Board will issue a written decision, including both findings of fact and conclusions of law.
   3. The decision becomes final in 30 days unless, within that period, one of the parties appeals the Board’s decision to the Circuit Court.

X. Discovery Methods.

Once a legal proceeding has been initiated, each party has the opportunity to “discover” evidence in the possession of an opposing party. Traditionally, discovery methods include:

• Request for Admissions,
• Interrogatories,
• Requests for Production of Documents, and
• Depositions.

An attorney from the DAG’s Office will represent the division in responding to discovery requests. It is essential that all HIOSH personnel coordinate and cooperate with the assigned attorney to ensure that such responses are accurate, complete, and filed in a timely manner.

A. Interrogatories.

CSHOs shall draft and sign answers to interrogatories, with DAG assistance. It is the responsibility of the CSHO to answer each interrogatory separately and fully. The DAG attorney shall sign any objections to the interrogatories. CSHOs should be aware that they may be deposed and/or examined at hearing on the interrogatory answers provided.

B. Production of Documents.

1. Normally any request for production of documents is served on the DAG, who would then make a copy of the appropriate documents from the redacted copy already provided by HIOSH to the DAG. If a request for production of additional documents is served on DAG and that request is forwarded to the Branch Manager or CSHO, they should immediately make all documents relevant to that discovery demand available to the DAG attorney.
2. While portions of those materials may be later withheld based on govern-mental privileges or the law (e.g., statements that would reveal the identity of an informer), CSHOs must not withhold any information from the DAG attorney.
3. It is DAG’s responsibility to review all material and to assert any applicable privileges that may justify withholding documents/materials that would otherwise be discoverable.

C. Depositions.

Depositions permit an opposing party to take a potential witness’ pre-hearing statement under oath in order to better understand the witness’s potential testimony if the matter later proceeds to a hearing. CSHOs or other HIOSH personnel may be required to offer testimony during a deposition. In such cases, a DAG attorney will be present with the witness.

XI. Testifying in Hearings.

While instructions provided by DAG attorneys take precedence, particularly during trial preparation, the following considerations will generally enhance the hearing testimony of CSHOs:

A. Review Documents and Evidence.

In consultation with DAG, CSHOs should review documents and evidence relevant to the inspection or investigation before the proceeding so that when testifying, they are very familiar with the evidence and need not regularly refer to the file or other documents.

B. Attire.

Wear appropriate clothing that reflects the division’s respect for the court or other tribunal before which you are testifying. This also applies when appearing before a judge to seek an administrative warrant.

C. Responses to Questions.

Answer all questions directly and honestly. If you do not understand a question, indicate that and ask that the question be repeated or clarified.

D. Chair’s Instruction(s).

Listen carefully to any instruction provided by the Board Chair and, unless instructed to the contrary by DAG counsel, follow the Chair’s instruction.

XII. Board Simplified Proceedings.

The Board may implement a form of the OSHA Simplified Proceedings where it believes that the issues are relatively simple and due process can still be assured. The Board may then choose to set expedited dates for submission of documents.

NOTE: Simplified proceedings provide fewer opportunities for the DAG to obtain information concerning the employer’s positions and defenses prior to a hearing. Therefore, it is particularly important for CSHOs to promptly provide DAG with all information regarding potential affirmative defenses that an employer may raise and/or arguments the employer may use to refute a violation(s) or the propriety of a proposed penalty.

XIII. Citation Final Order Dates.

A. Citation/Notice of Penalty Not Contested.

The Citation/Notice of Penalty and abatement date becomes a final order on the date the 20 calendar day contest period expires. For purposes of computing the 20 calendar day period, the day the employer receives the citation is not counted.

Example 15-1: An employer receives the Citation/Notice of Penalty on Monday, August 4th. The day the employer receives the Citation/Notice of Penalty is not counted. Therefore, the final order date would be Monday, August 25h.

B. Citation/Notice of Penalty Resolved by Informal Settlement Agreement (ISA).

Because there is no contest of the citation, an ISA becomes final, with penalties due and payable, on the date of the last signature of the parties. See also Chapter 8, Paragraph I.B.2. (An ISA is effective upon signature by both the Branch Manager and the employer representative as long as the contest period has not expired).

NOTE: A later due date for payment of penalties may be set by the terms of the ISA.

C. Citation/Notice of Penalty Resolved by Formal Settlement Agreement (FSA) or (STIP).

The Citation/Notice of Penalty becomes final 30 days after the filing of the Hawaii Labor Relations Board’s (Board’s) Order approving the parties’ stipulation and settlement agreement, assuming there is no direction for review.

D. Cases Resolved by HLRB Decision.

The Board’s decision becomes a final order 30 days after its filing, unless an appeal is filed with the Circuit Court.

If the Board’s decision is unfavorable to the division, the Administrator may recommend an appeal to the appellate court, based upon either erroneous findings of fact, or incorrect conclusions of law. The final decision of whether to appeal or not is with the DAG.

E. Board Decision Reviewed by Appellate Court.

Upon appeal, the appellate courts, Circuit, Intermediate Court of Appeals, or Hawaii Supreme Court will review the case based on the record created by the Hawaii Labor Relations Board. Often, briefs are filed and the hearing before the judge is a matter of orally stating why one believes the Board was incorrect in its decision and order. No witnesses are called, and no documents are submitted other than a position brief.

As a matter of policy, HIOSH does not attempt to collect civil penalties while a case is being appealed.

XIV. Court Enforcement under Section 4(d)(7) of the HIOSH Law.

An employer’s obligation to abate a cited violation arises when there is a final order and the citation is upheld.

A. §396-4(d)(7), HRS [Similar to OSH Act Section 11(b)]

Section 396-4(d)(7) of the HIOSH Law authorizes HIOSH to obtain a summary enforcement order from the appropriate Circuit Court enforcing a citation final order. An employer who violates such a court order can be found in contempt of court. Potential sanctions for contempt include daily penalties and other fines, recovery of the Director’s costs of bringing the action, incarceration of an individual company officer who flouts the Court’s order, and any other sanction which the court deems necessary to secure compliance. Employers who ignore ordinary enforcement actions may be induced to comply by the severity of these potential contempt sanctions.

Section 4(d) (7) orders can be an effective and speedier alternative to failure-to-abate notices that are typically issued when an employer does not abate a violation within the allowed time. They can be requested from the Court whether the final order results HLRB decision and order, a settlement agreement, or an uncontested citation.

B. Selection of Cases for Section 4(d)(7) Action.

All final orders issued in severe violator enforcement cases must be considered for Section 4(d)(7) enforcement. In addition, a petition for 4(d)(7) enforcement is to be considered in cases where final orders do not meet the severe violator enforcement case criteria but where the following factors suggest that a 4(d)(7) petition should be filed:

1. Employer’s citation history and/or other indications suggest serious compliance problems, such as widespread violations of the same or similar standards at multiple establishments or construction worksites. The OSHA IMIS database should be searched for the employer’s history of violations;
2. Employer statements or actions indicating reluctance or refusal to abate significant hazards, or behavior that demonstrates indifference to employee safety;
3. Repeated violations of the Law, particularly of the same standard, which continue undeterred by the traditional remedies of civil monetary penalties and HLRB orders to abate;
4. Repeated refusal to pay penalties;
5. Filing false or inadequate abatement verification reports;
6. Disregard of a previous settlement agreement, particularly one that includes a specific or company-wide abatement plan.

C. Drafting of Citations and Settlements to Facilitate Section 11(b) Enforcement.

Proper drafting of citations and settlement agreements can facilitate obtaining a Section 4(d) (7) order and maximize its deterrent effect.

Notations stating “Corrected during inspection” or “Employer has abated all hazards” shall not be made on the citation in cases where there is evidence of a continuing violative practice by an employer that may be subject to a summary enforcement order under Section 4(d)(7) of the Law (i.e., failure to provide fall protection is a recurring condition based on citation history or other indications suggesting widespread violations of the same or similar standards at other establishments or construction worksites).

Where possible, HIOSH should attempt to identify cases that may warrant Section 4(d) (7) enforcement at least a month before issuing the citation. When HIOSH identifies such a case, it will contact the DAG to discuss citation language that is in accord with Section 4(d) (7)) enforcement. If a case identified for potential 4(d) (7) action is being resolved through a settlement agreement, whether formal or informal, language should be sought in the agreement that commits the employer to specific ongoing abatement duties.

Language in a settlement agreement that imposes a specific duty on the employer, such as a requirement that the employer hire a consultant to develop a safety program or provide HIOSH with a list of other worksites, can be enforced under Section 4(d)(7).

D. Follow-up Inspections.

The DAG shall notify HIOSH when a court has entered a Section 4(d) (7) order. HIOSH will then promptly schedule an inspection or investigation to determine whether the employer is complying with the court order. The Administrator, in consultation with the DAG, will determine the nature and extent of the inspection or investigation. The DAG will advise on the kind of “clear and convincing” evidence that would be needed to support a contempt petition in the event of the employer’s noncompliance with the order of the court.

E. Conduct of Verification Inspections.

Whenever an enforcement order is issued by an appellate court, an inspection shall be scheduled within six months to determine whether the company is complying with the court order. If serious violations of the standard(s) subject to the enforcement order are found, the DAG shall be contacted immediately for guidance on what evidence will be needed for submission to the court.